Request By:
Kevan M. Doran
Frost Brown Todd LLC
400 West Market Street, 32nd Floor
Louisville, KY 40202-3363Kyle T. Thompson, Counsel
Kentucky Board of Emergency Services
Kentucky Community and Technical College System
2545 Old Lawrenceburg Road
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Preliminary Inquiry Board (a public agency pursuant to KRS 61.805(e)) of the Kentucky Board of Emergency Medical Services violated the Kentucky Open Meetings Act in failing to observe the requisite formalities of KRS 61.815(1) prior to conducting a closed session during the regular meeting held on January 17, 2006, and by discussing matters outside the scope of KRS 61.810(1)(f) during that closed session. In accordance with governing precedent, this office must answer both questions in the affirmative. Although the Board also invoked KRS 61.810(1)(j), albeit belatedly, the presence of "the person involved, his representatives," and/or an individual "not a member of the agency's governing body or staff" at the closed session rendered this exception inapplicable.
By letter directed to Kyle T. Thompson, General Counsel, KBEMS, on November 15, 2006, Kevan M. Doran submitted a written complaint on behalf of his client, Mercy Ambulance Service, alleging that the Board failed to observe the requisite formalities of KRS 61.815(1) 1 prior to conducting a closed session during the regular meeting held on January 17, 2006; Mercy further alleged that discussion by the Board was not confined to matters within the scope of KRS 61.810(1)(f), the exception upon which the Board relied. 2 In sum, Mercy contended that the Board violated the Open Meetings Act in the following ways:
(1) failing to provide adequate notice regarding the subject matter that the Board intended to discuss during the closed door session;
(2) failing to provide any reason necessitating the Board entering into that closed door session;
(3) failing to cite any applicable exception to the Act that would allow the Board to go into a closed session; and
(4) discussing unauthorized matters during that closed session.
As a means of remedying the alleged violations, Mercy proposed that "any action taken by the Board against Mercy during the voidable January 17, 2006 public meeting must be voluntarily withdrawn via a dismissal with prejudice of the charges pending against Mercy in Administrative Action No. 06-KBEMS-0187 (Agency Case No. 2005-142)." In other words, "the agency must proactively void the action that it took against Mercy during the impermissible January 17th meeting." 3 Additionally, Mercy is entitled to receive "any memorializations -- print, audio, video or other electronic format -- that record or otherwise describe the discussions occurring during the Board's closed door session. " Citing KRS 61.846, Mercy argued that the Board "has an obligation to immediately report that fact" if no record of the discussion exists.
In a timely written response, Mr. Thompson acknowledged that the Board held a regularly scheduled public meeting to "discuss proposed disciplinary matters on January 17, 2006." According to Mr. Thompson, public notice of the meeting was given; all interested parties "were notified and given the opportunity to be present and discuss the issues presented." Citing KRS 61.810, Mr. Thompson argued that the Board is "neither a public agency nor comprised of a quorum of members from KBEMS, which consists of eighteen members. In fact, at the January 17, 2006 meeting only one member of KBEMS was present, that being Mr. Garrett." In addition, KBEMS "takes no action on the determination of the [Board] at any time during or after its regularly scheduled meetings. Any disciplinary actions taken by KBEMS are at the discretion of the Executive Director and properly litigated" with the assistance of counsel. However, KBEMS "has always abided by the terms of the Open Meetings Act in conducting" the Board meetings. As such, KBEMS "has always held these meetings at specific times and places which are convenient to the public. The schedule of these meetings is made available to the public on the KBEMS' website." KBEMS has "always kept minutes of the meetings and these minutes are open to inspection by the public no later than the conclusion of the next" Board meeting. And, KBEMS has "assured that the public and news agencies are welcome and can attend all meetings."
As a matter of record, KBEMS, "since its inception," has "always used KRS 61.810(1)(f) as its exception to the Open Meetings Act as the discussions within this body may lead to the disciplining of a certificate or license holder." In Mr. Thompson's view, the Board "clearly gave notice to the public and in that notice specifically noted the cases and issues that would be discussed in Closed Session. " 4 Therefore, the Board "met the requirements of KRS 61.810(1)(d)." In fact, during closed sessions the Board "allows the individuals whose cases are being heard to re-enter the room and discuss the matter with the [Board]." On the date in question, the Board permitted all interested parties "to re-enter the room for a complete and thorough discussion of the issues presented in the complaint." As further support for the Board's position, Mr. Thompson explains that a "high percentage of the complaints filed with KBEMS are without merit" and thereby dismissed. Discussions in closed sessions are of a "highly sensitive nature and to protect the reputations and integrity of those involved in these proceedings the Executive Director and Counsel for the Board have used the [Board] as a tool, prescribed by KRS 311A.055(11), to determine the sufficiency of evidence to remand the matter or dismiss it accordingly." In closing, Mr. Thompson indicated there "are no other memorializations -- print, audio, video, or other electronic format -- that recorded the discussion of the [Board's closed session] as none is required by statute or regulation."
Reiterating that the Board violated the Open Meetings Act in failing to comply with notice requirements codified at KRS 61.815(1) prior to conducting the closed session on January 17, 2006, and in having a discussion not authorized by KRS 61.810(1)(f) during the closed session, 5 Mercy subsequently initiated this appeal challenging the denial of its complaint. To begin, Mercy correctly notes that KRS 61.810(1)(f) does not apply to licensees as evidenced by the definition of "member" codified at KRS 61.805(4). 6 Because it "is manifestly apparent that Mercy and the other licensees and certificate holders discussed by the Board during its January 17, 2006 closed session are not employees, students or members of KBEMS," it necessarily follows that KRS 61.810(1)(f) does not apply. Citing Floyd County Bd. Of Education v. Ratliff and 06-OMD-211, Mercy further argues that "once the Board invoked KRS 61.810(1)(f) to conduct a closed session, the only topic that the Board members could permissibly discuss were matters pertaining to employees, members or students of the agency." In Mercy's view, "propounding new exceptions at this late juncture is inconsistent with the Open Meetings Act's express statutory requirements and underlying purpose." Citing 05-OMD-017, Mr. Doran correctly observes that a public agency does not satisfy the requirements of KRS 61.815(1)(a) in belatedly citing the exceptions upon receipt of a complaint.
In addressing the Board's assertion that it cannot properly be characterized as a public agency for purposes of the Open Meetings Act, Mercy again properly relies upon 06-OMD-211, as well as 06-OMD-170, for the proposition that "public entities, such as the Board, doing the public's business under the guidance and control of a larger public agency, such as KBEMS, are expressly defined as public agencies by KRS 61.805(2)(g)." Citing 05-OMD-017 as being "[e]mblamatic" of the "consistent holdings" in decisions issued by this office on the subject, Mercy observes that "the Attorney General definitively ruled that the Kentucky Board of Medical Licensure Inquiry Panel B, a public entity virtually identical to the [Board], fell squarely within the ambit of the Open Meetings Act. " Next, Mercy challenges the Board's contention that no action was taken, correctly asserting that "even assuming arguendo " the Board acted "solely in an advisory capacity," that does not "obviate the need for the Board to comply with the statutory dictates of the Open Meetings Act. " In accordance with 06-OMD-211 and 06-OMD-170, "the Board's claim that no action was taken, even if true, is irrelevant."
Quoting again from Floyd County Bd. Of Education v. Ratliff and 05-OMD-017, Mercy refutes the argument that any violation of the Act is merely "technical," noting that a review of decisions issued by this office "should quickly disabuse it of that notion." In short, "The General Assembly, Kentucky's courts, and the Office of the Attorney General unanimously and unequivocally agree -- public agencies must strictly adhere to the letter of the Open Meetings Act's statutory requirements." 7 On a separate but related note, Mercy reiterates that a "generic reference to 'disciplinary issues' does not comply with the Notice and Reason requirements expressly set [forth] in KRS 61.815(1)(a)"; Mercy cites 03-OMD-221 and 05-OMD-017 in support of this position. Relying upon Jefferson County Bd. Of Education , Mercy emphasizes that "the Board's perfunctory parroting of a two-word phrase found in an inapplicable exception of the Act does not fulfill the agency's obligations to provide notice and reason." In conclusion, Mercy argues that "[p]ermitting re-entry of some select individuals into a closed meeting is not an acceptable or statutorily authorized alternative to complying with the Open Meetings Act itself" nor does the "Board's desire to protect discussions it deems 'sensitive' . . . authorize it to avoid the statutory requirements" of the Act. Anticipating that the Board might "attempt to retrospectively seize upon KRS 61.810(1)(j) as authorizing the closed session, Mercy preemptively notes that exception is inapplicable in the current case because, contrary to the statute's express requirement that 'neither the person involved, his representatives, nor any other individual not a member of the governing body or staff is present,'" the Board expressly admits that such people were present during the closed session conducted on January 17, 2006. 8
Upon receiving notification of Mercy's appeal from this office, Mr. Thompson responded on behalf of the Board. According to Mr. Thompson, the Board "was designed to serve as a pseudo-grand jury to discuss the potential disciplinary actions against individuals and services. The entity was statutorily designed [to consist of the] Executive Director, General Counsel, and one person licensed or certified at or above the level of the individual who had a charge filed against them." Absent from the legislative mandate of KRS 311A.055 is "ANY reference to Board Members, Committee Members, or Sub-Committee Members of KBEMS." In fact, "two of the three members of this panel were simply staff members of the Board and the other was a disinterested third party that was neither a KBEMS Board member nor member of any subcommittee of the Board."
In Mr. Thompson's view, 00-OMD-141, in which this office determined that a body composed of seven Kentucky Department of Education employees, four contractor representatives, and one employee of the Office of Education Accountability complied with many particulars of the Act, but was not "statutorily required to do so inasmuch as it is not a public agency within the scope and meaning of KRS 61.805(2)(a) through (h)[,]" is sufficiently analogous to be determinative. Contrary to Mr. Doran's assertion, 05-OMD-017 is distinguishable insofar as the Kentucky Board of Medical Licensure "actually divided itself into two separate groups for the purpose of hearing possible disciplinary complaints"; the Board contends that situation "is much different than a meeting of two staff members and a non-board member." In order to avoid even the appearance of impropriety, the Board "attempted to abide" by the requirements of the Act by posting the agenda "for public review and notice [,]" etc. To clarify, the Board "has never taken evidence at or during a meeting of the [Board]. And finally, the [Board] has always guaranteed that no action was ever taken outside the watchful eye of the public."
If the Board erred, it was in "the citation to the proper exemption to the Open Meeting [s] Act that was originally offered." On January 17, 2006, and in response to Mercy's complaint, the Board relied solely upon KRS 61.810(1)(f); the Board now "recognizes the fact . . . that it should have cited KRS 61.810(1)(j) as well." 9 Quoting 05-OMD-017, Mr. Thompson confirms that the "function of that panel, while significantly different in its makeup than the KBEMS Preliminary Inquiry Board, holds the identical capacity ; to discuss and review preliminary investigative materials and to determine what actions should be taken next." (Emphasis added). In that case, the Attorney General held that the KBML Inquiry Panel "could into a closed session pursuant to KRS 61.810(1)(j) ." 10 Acknowledging that the Board "may not have clearly announced its decision to go into a closed session" or properly invoked KRS 61.810(1)(j), Mr. Thompson contends "it is evident that the [Board] functions wholly as a quasi-judicial body." As such, the Board "substantively met the desired spirit of the law while possibly not exactly meeting its form." 11 Because governing precedent does not support the Board's position relative to KRS 61.815(1), 61.810(1)(f), or 61.810(1)(j), this office respectfully disagrees. Any error may have been inadvertent, but the Board did not comply with either the procedural or the substantive provisions of the Act. 12
As a threshold matter, this office must address the Board's contention that a quorum of the KBEMS must be present for the Open Meetings Act to apply, i.e., the Preliminary Inquiry Board is not a public agency for purposes of the Open Meetings Act. In relevant part, KRS 61.805(2) defines "public agency" as follows:
(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government[.]
A review of KRS 311A.055 reveals that upon receipt of a properly filed complaint, "the executive director shall assign the complaint to a staff investigator who shall investigate the complaint and shall make findings of fact and recommendations to the executive director who shall then convene a preliminary inquiry board ." KRS 311A.055(10)(Emphasis added). More specifically, KRS 311A.055(10) provides that the Board "shall consist of the executive director, a person representing the same category of certification or licensure as the defendant who is not a member of the board appointed by the chairman of the board, and the board attorney." When viewed in conjunction, KRS 61.805(2)(e) and the mandatory language of KRS 311A.055 remove any doubt as to whether the Board is properly characterized as a public agency in this context. Although the Board arguably qualifies as a public agency within the meaning of one or more of the other definitional subsections codified at KRS 61.805(2), 13 our determination relative to KRS 61.805(2)(e) renders consideration of those issues unnecessary.
97-OMD-139, citing OAG 94-25. See 06-OMD-211, pp. 4-5.
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Insofar as the Board, standing alone, constitutes a public agency for purposes of the Open Meetings Act, this office considers the total composition of the Board itself, rather than the total composition of the KBEMS, in determining whether a quorum of the Board was present on the date in question. According to minutes of the meeting, copies of which are of record, the "determination of quorum was made and quorum was met." When a quorum of the Board convenes to discuss public business, a meeting occurs "regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.805(1). Such meetings are open to the public unless one or more of the exceptions codified at KRS 61.810(1) is properly invoked. To clarify, neither the advisory role of the Board nor its lack of authority to take final action alters our conclusion. In accordance with KRS 61.810(1):
All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following [enumerated exceptions].
(Emphasis added). In construing this provision, the Attorney General has consistently "attached significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5. 14 Created by statute, the Board is a public agency within the meaning of KRS 61.805(2)(e); meetings of the Board at which a quorum of the Board members is present, at which public business is discussed, must conform to the requirements of the Open Meetings Act. "Any other holding would clearly thwart the intent of the law." Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee , Ky., 732 s.W.2d 884, 886 (1987). Accordingly, the question becomes whether the Board complied with notice requirements codified at KRS 61.815(1) before going into closed session on January 17, 2006, in accordance with Floyd County Bd. of Education v. Ratliff, supra, and prior decisions of this office.
In short, the position historically taken by this office finds support in Floyd County Board of Education v. Ratliff , in which the Kentucky Supreme Court held that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with the requirements for conducting a closed session, the Court observed:
KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."
Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.
Floyd County Board of Education at 924. Based upon the foregoing, this office concludes that the Board erred in failing to comply with KRS 61.815(1)(a) prior to conducting the closed session which prompted this appeal as evidenced by the record.
Turning to the substantive issues presented, this office finds that the Board violated the Open Meetings Act in having a discussion that was not authorized by KRS 61.810(1)(f); likewise, the Board improperly relied upon KRS 61.810(1)(j) as the alternative basis for conducting the closed session after the fact. Our analysis begins with the fundamental proposition codified at KRS 61.800:
The General Assembly finds and declares that the basic policy of KRS 61.805 to KRS 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided by law shall be strictly construed.
Recognizing that extraordinary circumstances occur which might justify an agency conducting public business during a closed session, the General Assembly has created a number of exceptions to this general rule. Among those meetings which are excepted from application of the Open Meetings Act are meetings or hearings at which the appointment, discipline, or dismissal of an individual employee, member or student will be discussed. KRS 61.810(1)(f).
When interpreting the provisions of the Open Meetings Act, Kentucky's highest courts have recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E.W. Scripps Co. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990). Consequently, "the courts of the Commonwealth must narrowly construe and apply the exceptions so as to avoid improper or unauthorized closed, executive or secret meetings." Id . Adopting language from the Court of Appeals, the Supreme Court concluded that "'the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny.'" Id . at 924.
By its express terms, KRS 61.810(1)(f) authorizes public agencies to go into a closed session for the following reasons only:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret [.]
In applying this provision, commonly referred to as the "personnel exception" of the Open Meetings Act, this office has observed:
A public agency's authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. See 93-OMD-49[p. 3; OAG 90-125, p. 2].
Prior to going into closed session for one of the specific purposes authorized by KRS 61.810(1)(f), a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
97-OMD-110, p. 3; 03-OMD-148; 00-OMD-113; 00-OMD-86; 99-OMD-94.
Each of these decisions echoes an earlier Open Meetings decision in which the Attorney General recognized that:
The legislature specifically intended to close discussions only of these three subjects due to the potential for reputational damage. Closed discussions of other matters are expressly precluded by KRS 61.810[(1)(f)] which prohibits the "discussion of general personnel matters in secret. "
OAG 83-415, p. 2 (holding that the public agency improperly relied upon KRS 61.810(1)(f) to conduct a closed session for the purpose of discussing an employee's resignation); 03-OMD-148, p. 7. Here, the Board did not establish which of the permissible subjects necessitated a closed session.
In keeping with prior decisions, the Attorney General has declared that "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session [under authority of KRS 61.810(1)(f)] . . ." 00-OMD-86, p. 3, and "KRS 61.810(1)(f), interpreted by this office in a manner consistent with the rule of strict construction codified at KRS 61.800, is 'severely restricted . . . [and only applies to discussions] which might lead to the appointment, discipline, or dismissal of personnel of that particular agency.'" 99-OMD-94, p. 6, citing 97-OMD-110, p. 3. See OAG 90-125 (holding that a university committee appointed to study academic standards for student athletes could not discuss such matters in a closed session called pursuant to KRS 61.810(1)(f)); 94-OMD-103 (holding that discussing the possible creation of a new position is improper during a closed session) ; 97-OMD-80 (holding that a discussion regarding the appointment of new members to a university presidential search committee could not be conducted in closed session because persons appointed were not employees of the university); 99-OMD-133 (holding that a public agency improperly conducted a closed session for the purpose of discussing an employee's resignation); 99-OMD-221 (holding that an employee's claim for reimbursement could not be discussed in closed session) ; 00-OMD-113 (holding that any discussion by the city commission that was not restricted to whether disciplinary measures needed to be imposed on the police personnel who participated in the specified raid was not authorized by KRS 61.810(1)(f) and any discussion relating to the executive order was not properly the subject of an executive session) .
As evidenced by this line of decisions, a public agency satisfies the requirements of KRS 61.815(1)(a) and properly goes into closed session under authority of KRS 61.810(1)(f) by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee) , the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810(1) is being invoked to authorize the closed session (KRS 61.810(1)(f) ). 15 05-OMD-011, p. 4, citing 99-OMD-49. To reiterate, the Open Meetings Act prohibits unauthorized discussions as well as final action. 00-OMD113, p. 4.
For purposes of the Open Meetings Act, "'Member' means a member of the governing body of the public agency and does not include employees or licensees of the agency ." KRS 61.805(4). As correctly argued by Mercy, this office has consistently recognized that exceptions to the Open Meetings Act must be strictly construed in accordance with KRS 61.800; licensees are excluded from the definition of member by the express language of KRS 61.805(4). In responding to Mercy's complaint, the Board emphasized that "discussions within this body may lead to the disciplining of a certificate or license holder." On appeal, the Board does not dispute Mercy's contention regarding application of KRS 61.805(4), relying instead on the previous argument that it "has always" invoked KRS 61.810(1)(f) for this purpose, and belatedly invoking KRS 61.810(1)(j). More importantly, a review of KRS 311A.055(2) confirms that a person may file a complaint to the Executive Director concerning "an entity licensed or certified by the board, first responder, emergency medical technician, paramedic, emergency medical services medical advisor or other person licensed or certified by the [KBEMS]. . ." (Emphasis added). When KRS 61.810(1)(f) is viewed in light of KRS 61.805(4), as it must be, KRS 61.810(1)(f) is facially inapplicable on the facts presented. Accordingly, the remaining question is whether the Board properly invoked KRS 61.810(1)(j) from a substantive if not a procedural standpoint.
In 05-OMD-017, upon which both parties rely, this office found that Inquiry Panel B of the Medical Licensure Board, which exists by virtue of KRS 311.591(1), "when it considers and deliberates on a grievance against a physician, acts in a quasi-judicial capacity." Although the composition of that panel under KRS 311.591(1), 16 differs from the composition of the Board under KRS 311A.055(10), as the Board acknowledges on appeal ("significantly different in its makeup"), the Board indicates that it "holds the identical capacity; to discuss and review preliminary investigative materials." See KRS 311.591(3) ; KRS 311A.055(11). In other words, the Board is analogous to Inquiry Panel B insofar as both are "quasi-judicial bodies" engaged in deliberations "regarding individual adjudications" as required for application of KRS 61.810(1)(j). Because 05-OMD-017 is governing precedent, this office must so conclude; however, the similarity ends there.
Noticeably absent from 05-OMD-017 is any discussion of the qualifying language upon which the outcome of this appeal hinges -- "at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present" -- presumably because the plain language of the respective statutes, namely, KRS 311.591(1) and KRS 311A.055(10), is readily distinguishable. Simply put, the former dictates that members of the KBML, including a consumer member, compose the panels, whereas the latter specifies that a person who is not a member of the KBEMS be included on the Board; the record also reflects that a "disinterested third party that was neither a KBEMS Board member nor member of any subcommittee of the Board" was in attendance. In addition, the minutes appear to confirm that four people went into the closed session at issue (Mr. Bishop, Executive Director, Mr. Thompson, General Counsel, Mr. Cremeans, Boyd County EMS, and Mr. Garrett, Somerset Fire/EMS). Based upon the evidence of record, this office concludes that KRS 61.810(1)(j) could not properly be applied in this context. In sum, the cited authorities validate each of the arguments raised by Mercy.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 61.815(1) provides:
Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
2 CitingFloyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997) and Jefferson County Board of Education v. Courier-Journal and Louisville Times Co. Ky. App., 551 S.W.2d 25, 29 (1977) relative to application of KRS 61.815(1), Mercy asserted that "when public agencies ignore the express statutory mandates and improperly discuss matters not covered by the cited exception, it is black letter law that any actions taken pursuant to those statutorily prohibited discussions are void." More specifically, Mr. Doran argued:
The record makes it readily apparent that the Board violated both the spirit and letter of the Open Meetings Act during its January 17, 2006 public meeting. Perfunctorily asserting its authority to go into a closed door "Executive Session" under KRS 61.810(1)(f), the Board simply referenced unspecified "disciplinary issues." That two-word generic phrase, however, is insufficient to provide the public with the meaningful notice and explanation called for by KRS 61.815(1)(a). Given the express dictates of KRS 61.815(1)(a), it is readily apparent that more is required. It seems beyond serious dispute that the Board cannot provide the public with meaningful notice or sufficient explanation, as required by statute, simply by echoing the same exact two-word phrase in each and every Board meeting. See , Minutes for [KBEMS PIB] meeting from February 22, 2005 to May 15, 2006 (including the verbatim use of this two-[word] generic phrase to justify every closed session conduct[ed] by the Board) (attached as Exhibits 2 through 13). Accordingly, the Board's failure to provide the public with meaningful notice and sufficient explanation for its decision to go into closed door session on January 17, 2006 was a violation of the Open Meetings Act.
Worse yet, after specifically invoking KRS 61.810(1)(f) -- the exception to the Open Meetings Act allowing government bodies to discuss personnel matters -- the Board was expressly limited to discussing [] "the appointment, discipline or dismissal of an individual employee, member or student" of KBEMS. KRS 61.810(1)(f). Although it is abundantly clear that licensee Mercy is none of the above, the Board nonetheless engaged in an unauthorized discussion[] of its conduct during its closed door "Executive Session . . . pursuant to KRS 61.810(1)(f)." Minutes for [KBEMS PIB] meeting on January 17, 2006. Accordingly, that unauthorized discussion -- conducted free from the light of public scrutiny -- was unquestionably a violation of the Open Meetings Act. [See 06-OMD-150].
In conclusion, Mr. Doran emphasizes that "retrospectively trying to assert an exception -- as an excuse for conducting a closed door session -- is impermissible under the terms of the Open Meetings Act. KRS 61.800; OAG 83-377."
3 If KBEMS "elects to voluntarily dismiss this matter and agrees to permanently abandon pursuing any current or potential charges possibly stemming from its investigation and prosecution of the above mentioned case," Mercy will "relinquish its rights to purse the other statutory remedies available to it under the Act -- i.e. -- attorney's fees and statutory damages award[ed] under KRS 61.848(6)."
As correctly noted by Mercy on appeal, the role of the Attorney General is "confined to determining whether a violation of the Open Meetings Act occurred" per KRS 61.846(2). Because the "fashioning of relief for any violation is an issue appropriately addressed to the Franklin Circuit Court, Mercy is addressing only those issues bearing upon the Board's violation of the Act. KRS 61.846(4)(b); KRS 61.848."
4 A copy of the agenda for the meeting held on January 17, 2006, is attached to Mr. Thompson's response; the fourth item (4) listed is "Executive Session -- Discipline according to KRS 61.810(1)(f)," following which is a list of 16 items collectively entitled "Action Agenda" which appears to identify complaint numbers and the corresponding "Educational Institution" Number, License Number, or EMT Number. Item (5) reads "Vote on Disciplinary Matter."
5 In its entirety, the Board's explanation forconducting the closed session consisted of the following:
After a fifteen-minute recess, Mr. Thompson made a motion to go into Executive Session for the purpose of disciplinary issues, pursuant to KRS 61.810(1)(f).
Seconded by Mr. Garrett, motion passed unanimously. Mr. Bishop requested
Mr. Cremeans be present during executive session.
Mr. Thompson made a motion to come out of Executive Session. Seconded by Mr. Garrett, motion passed unanimously. No final action was taken during Executive Session.
6 According toKRS 61.805(4):
"Member" means a member of the governing body of the public agency and does not include employees or licensees of the agency.
7 In addressing the necessity of strict compliance relative to invocation of the specific exception relied upon, the Attorney General observed:
The cited authorities clearly demonstrate that citation to the specific exception authorizing the closed session is not simply "the best practice," or that the failure to do so is a mere "technical" violation, but that it is instead a statutory requirement along with the requirement that the agency describe the general nature of the business to be discussed.
04-OMD-179, p. 8. Likewise, this office expressly declined to treat a violation of the Open Meetings Act as "technical" in 00-OMD-114, reasoning that "[t]he Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" Today this office declines the Board's invitation to view any violation as technical.
8 Pursuant toKRS 61.810(1)(j), the following meetings are exempt from application of the Open Meetings Act:
Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment.
9 In a reply directed to the undersigned via electronic mail on Monday, December 4, 2006, Mr. Doran strongly opposes the Board's belated invocation of KRS 61.810(1)(j), arguing that it "seems inherently inequitable that the Board's failure to reference KRS 61.810(1)(j) until the eleventh hour should now work to its advantage." Anticipating that the Board would attempt to "recharacterize is meeting as permissible under KRS 61.810(1)(j), Mercy preemptively explained why the January 17, 2006 closed session did not fall within that exception." Noting that KRS 61.810(1)(j), by its "unequivocal wording," excludes closed sessions involving "the person involved [and/or] his representatives" from its ambit, Mercy unambiguously explained that the closed session at issue "could not fall within that exception because the Board admits that such parties were present." In addition, "since the Board indicates that it allows individuals and their counsel to come and present their factual account of events to the Board, during its closed sessions, Mercy finds it difficult to credit the Board's suggestion that such testimony is not evidence." Although time constraints required this office to decline Mercy's request to further address these issues, both points are well-taken; this office has conducted extensive research and given proper consideration to all issues raised by the parties.
10 Of particular relevance here, this office first held that "KRS 61.815(1) applies to the Board," and the Board violated KRS 61.815(1)(a); implicit in this finding was the determination that the Board is a public agency within the meaning of KRS 61.805(2). Our holding today is therefore consistent with 05-OMD-017 in this regard although that decision is distinguishable relative to KRS 61.810(1)(j) as explained later.
11 Even if the Attorney General were to determine that the Board "inadvertently violated the Open Meetings Act because of a technical violation, Mercy was still afforded every [opportunity] to be present, no actions were taken in closed session, and the [Board] only review and discussed those potential disciplinary matters that it outlined in its notice to the public." Contrary to Mr. Thompson's assertion that "if there was a violation, it was technical in nature and afforded no injury to the complaining party," there is no lesser class of violations as consistently recognized by this office. Because the Board failed to comply with procedural and substantive provisions of the Open Meetings Act, injury to Mercy and the public in general necessarily resulted.
12 Contrary to the Board's assertion, belatedly invoking an exception does not remedy the initial error; this office reminds the Board that a response submitted in accordance with 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement rather than supplant its original response because the Open Records and Open Meetings Acts "presume[] that the agency's KRS 61.880(1) [or KRS 61.846(1)] response is complete in and of itself." 02-ORD-118, p. 3. Said another way, this office will consider supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the requester's letter of appeal, or which offer additional support for the agency's original denial. Id. In responding to future complaints, the Board should be guided by these observations.
13 For instance,KRS 61.805(2)(g) refers to entities which possess the following characteristics:
. its members act as a unit;
. authority has been officially delegated to it;
. its responsibility is to consider, investigate, take action on, or report to a higher authority; and
. specific matters are entrusted to it.
14 When called upon to render a decision involving statutory interpretation, this office is required to "ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962);KRS 446.080(1). To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth of Kentucky, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
15 A public agency is not required to identify by name the employee or employees who will be discussed, nor is the agency restricted to discussing one employee at a time. 00-OMD-113, p. 4. Inasmuch as joint action by a group of employees may result in joint disciplinary action or dismissal by an employer, the Attorney General has expressly so held. 99-OMD-49, p. 4. To hold otherwise would place unjustifiable impediments on the ability of a public agency to effectively and efficiently discuss joint misconduct of public employees which might warrant disciplinary action or dismissal. Id.
16 In relevant part,KRS 311.591(1) provides:
The president of the board shall divide the membership of the board, excluding himself, into two (2) panels of seven (7) members, each panel to include at least one (1) consumer member.
In contrast, KRS 311A.055(10) provides:
The preliminary inquiry board shall consist of the executive director, a person representing the same category of certification or licensure as the defendant who is not a member of the board appointed by the chairman of the board, and the board attorney.